The US Supreme Court will consider Moore v. Harper, a case stemming from disagreements about the role of state courts in the management of federal elections. Understanding what’s at stake in the case is helped by a sports analogy, where our intuitions of fairness are usually clear.
Imagine a city with two rival high schools in the same school district. The referees at their highly contested basketball games make mistakes from time to time because they’re only human. On the whole, however, they’re just as good as most other refs, and the ones found incompetent or unfair are soon recognized and excluded.
Now suppose that the school board just happens to be dominated by the parents of students at just one of the two schools. These parents claim that the school board should be able to invalidate and overturn the decisions of the refs and thereby determine the outcome of games. This would be obviously be unfair. We need decisions about the players’ adherence to the rules of the game to be made by independent, neutral observers, that is, referees.
The Supreme Court of North Carolina, like the supreme courts in many other states, acts as the referee in election management. In that role, it invalidated the state legislature’s redistricting map following the 2020 census on the grounds that the map violated the state constitution’s restrictions on partisan gerrymandering. The legislature broke the state’s rules, so its actions are invalidated, just as points in basketball are taken away when they result from a foul. What was the foul in North Carolina?
Redistricting, according to the Court, should result in the state’s representation reflecting the preferences of voter. That's representative democracy. The state’s voters are roughly evenly divided among Republicans, Democrats, and Independents, but the map drawn by the Republican legislature would give Republicans 10 of the state’s 14 seats in the US House of Representatives. Republican partisans objected to intervention by these neutral judicial referees. Nevertheless, a new map drawn by court-appointed experts will be used.
The issue to come before the US Supreme Court isn’t whether the partisan map violated the state’s constitution, but whether a state supreme court can invalidate legislative decisions regarding the conduct of federal elections. The Election Clause in the US Constitution gives explicitly to state LEGISLATURES the power to decide the “Times, Places and Manner of holding Elections for Senators and Representatives.”
A textualist understanding of the Constitution, one that takes the explicit words of the document to determine its meaning, seems to justify what is called “the independent state legislature theory.” According to this textual understanding, the constitutional delegation of power to legislatures precludes state court judicial review of legislation regarding federal elections, even legislation that violates the state’s constitution.
But there’s no provision in the US Constitution that authorizes judicial review by the US Supreme Court either. Chief Justice John Marshall’s opinion attributed this power to the Court in Marbury v. Madison (1803), and the Court has been using it ever since.
So, to decide Moore v. Harper against the Supreme Court of North Carolina, the US Supreme Court would be using judicial review (which is not in the Constitution’s text) to insist that explicit textual support is required for NC’s Supreme Court to exercise judicial review of electoral maps. The US Supreme Court would be using textualism like a bus, to get where they want to go, and then get off. (The word chutzpa isn’t in the Constitution.)
So-called conservative jurists often combine textualism as a means of interpreting laws with original understanding, interpretations based on what the people who originally passed the law understood it to mean. Alexander Hamilton explained in the Federalist 78 that the Court would need to have the power to nullify legislation that doesn’t conform to the Constitution. Otherwise, constitutional guarantees of individual rights could be negated by legislation. Assuming that the people who approved our Constitution accepted this understanding of the document, it’s what the Constitution really means, even without explicit textual support. Here, textualism and original understanding diverge.
So, let’s look at Moore v. Harper from the perspective of original understanding. If it was the original understanding that the US Supreme Court could overturn legislation that it found unconstitutional in order to protect individual rights from legislative overreach, the same applies to the states. State constitutions also guarantee individual rights, and state legislatures can trample those rights, so states need judicial review for the same reason as the federal government.
In sum, on a textual understanding of the Constitution, the US Supreme Court can’t find against the NC Supreme Court without blatant inconsistency. The original understanding view, along with simple fairness, support the right of the NC Supreme Court to nullify the state’s legislation, in this case, a gerrymandered electoral map.
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